Agricultural organizations, landowners, and irrigators have collectively read with astonishment the opinion in the Oct. 14, 2007 Independent Record entitled "Keep Access Loophole Shut."

The bewilderment stems from the obvious lack of research by those who wrote the opinion, and the blatant misrepresentation of "fact" contained within the piece. Also troubling is the transparent attempt of the IR to sway justices of the Montana Supreme Court who heard the oral argument on the Mitchell Slough/Mitchell Ditch case just four (4) days prior. A few facts are in order:

1. The IR opinion states Mitchell Slough is a part of the Bitterroot River. As the District Court and Bitterroot Conservation District properly found after reviewing volumes of hydrologic data, the Mitchell would not flow BUT FOR water diverted into the Mitchell from the Bitterroot River, just like most other irrigation ditches in Montana;

2. It was NOT the landowners contrary to the IR's opinion, but a self-proclaimed access group "Bitterroot River Protective Association" (BRPA) joined by the Montana DFWP who filed the lawsuit;

3. Also, contrary to the IR opinion, the District Court entered specific findings of fact from a large body of scientific evidence which demonstrated the Mitchell does NOT flow in a natural channel. The path of the Mitchell as it exists is only as a result of the efforts of irrigators and water users who long ago connected ancient, abandoned features on the landscape with excavations, berms, lifts, and drop structures, not unlike many ditches which exist throughout Montana;

4. The Mitchell, as the overwhelming evidence before the District Court demonstrated, has never been a natural stream. The "loophole" continually touted by DFWP lawyers as repeated in the IR opinion is a "red herring" as the Mitchell never was a stream in the first place. Whatever "loophole" the IR and DFWP are discussing is not the Mitchell. In fact, the District Court, and the landowners on the Mitchell recognize modifying a stream does not remove it from recreational use by the public. However, that scenario is not the Mitchell, as properly found by the District Court;

5. The issue of whether a water body is "natural" is hardly irrelevant as the IR opinion states. It IS the test for stream access as provided by the legislature. Also, as the Montana Supreme Court has held in BRPA's first trip to the Supreme Court, and as the Court has held in previous stream access cases, it is only natural water bodies which are open to the public for recreation. That was the legislative compromise reached in 1985 which balances recreationists' rights and constitutionally protected private property rights.

It is unfortunate that the Independent Record has chosen to join those who fail to accurately portray the facts associated with the Mitchell or the Stream Access Law. The Stream Access Law has worked for Montana, landowners and recreationists, but it applies to natural water bodies only, not man-made water systems like the Mitchell. Efforts by DFWP, BRPA, and now the IR to misconstrue the facts, and the law, in an attempt to sway justice is a disservice to Montana. The District Court in fact did follow the law. A stream being wherever "water happens to be flowing" as the IR concludes will only lead to conflict and controversy. We suspect all along that has been the goal of BRPA and DFWP. It appears they have been successful with the IR. Recreationists and landowners can only hope the Montana Supreme Court disagrees.

John Youngberg is the V.P. of Governmental Affairs for the Montana Farm Bureau Federation; Errol Rice is the Executive Vice President of the Montana Stockgrowers Association; Walt and Mona Babcock are two of the landowners along the Mitchell; Jack Pfau is President of Webfoot Ditch Company which diverts water via the Mitchell.